State v. Wilshire

• Decision Date: 20 May 1986
• Docket Number: No. 85-290-C,85-290-C
• Citation: 509 A.2d 444
• Parties: STATE v. Noroelia WILSHIRE. A.
• Court: Rhode Island Supreme Court

Page 444

509 A.2d 444

STATE v. Noroelia WILSHIRE.

No. 85-290-C.A.

Supreme Court of Rhode Island.

May 20, 1986.

Arlene Violet, Atty. Gen., Thomas Dickinson, Spec. Asst. Atty. Gen., for plaintiff.

John Tramonti, Jr., John A. MacFadyen, 3rd, Providence, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on the defendant's appeal from a judgment of conviction of the crime of first-degree murder entered in the Superior Court pursuant to a jury verdict rendered March 10, 1985. We affirm. The salient facts of the case are as follows.

On April 23, 1983, East Greenwich Detective Robert Lemoi received a telephone call from defendant, Noroelia Wilshire, a little after 7:30 p.m. She stated that her husband had been found dead in their garage at 1075 Middle Road, East Greenwich, Rhode Island. Detective Lemoi was an acquaintance of defendant and her deceased husband, and Mrs. Wilshire asked him to go to the scene. (At the time of the phone call, defendant was at the home of neighbors where she had gone following discovery of her husband's body.) Lemoi called the East Greenwich police headquarters and then drove to the Wilshire home to find the body. He was at first unable to do so, but then he went to the neighbors' home and talked to defendant. She provided Lemoi with more specific instructions. As a result, with the aid of a flashlight, he located the body of John Wilshire in the garage of the Wilshire home; the body was near the left-front wheel of a tan Oldsmobile Cutlass bearing license plate number NORA 7. It appeared that John Wilshire had been shot twice. No gun was found at the scene.

Other East Greenwich police officers arrived at the scene and searched the house for intruders. Their inspection of the premises disclosed that drawers had been opened and an apparent ransacking of the dwelling had taken place. These discoveries seemed to indicate that a burglary had occurred. Moreover, the wallet and jewelry John Wilshire normally had on his person were not found on the body.

It appeared, however, to the investigating officers that there had been no forced entry and that many items of value remained untouched, in spite of the apparent ransacking. Silver, jewelry, and camera equipment had not been taken by the alleged burglar. This omission caused the officers to suspect that the burglary and ransacking had been staged. They questioned defendant concerning her whereabouts. She stated that at approximately 4:50 p.m. on April 23, 1983, she, her mother, and her son went to the Midland Mall Cinema in Warwick. She stated that she drove her husband's car, an Oldsmobile 98 bearing license plate JKW. Her husband had suggested that she take this car because he did not like their son, Alex, to ride in the smaller Cutlass. She stated that they remained at the movie theater until approximately five to ten minutes past 7 p.m. when they returned and found her husband's body in the garage. She stated that she and her husband had had marital problems arising out of financial difficulties. These difficulties had been aggravated by the husband's inability to repay a loan that had been made to the Wilshires from defendant's father.

The police questioned various neighbors and learned from Glenn and Carolyn Bowgren and Marjorie Kettelle that they had seen Noroelia Wilshire leave the house in the Cutlass bearing license plate NORA 7 (not the Oldsmobile 98) at approximately 5:45 or 5:50 p.m. (when she was supposedly at the movie theater). The police also questioned Leonard Brown, the manager of the Midland Mall Cinema. He stated that he had seen defendant at the movie theater on April 23 and that she had asked several times when the movie would end. He had seen defendant and her mother outside the theater after the start of the movie several times, the last time being approximately 6 p.m. He could not say whether she stayed for the whole movie.

The East Greenwich police obtained a warrant from a Superior Court justice, pursuant to which a search of the premises was conducted on May 17, 1983. This search produced a letter from the Firearms Division of Colt Industries congratulating someone upon the purchase of a Colt handgun and also produced a yellow tag that is ordinarily attached to such a gun to warn of the danger in handling a firearm. Ballistic evidence introduced at the trial indicated that the markings on the bullets that caused the death of John Wilshire were consistent with markings on bullets fired from a Colt handgun.

Evidence was also introduced that defendant had consulted a lawyer regarding a divorce and that she had stated that she "hated" her husband. Evidence was further introduced that a short time before the husband's death, defendant had obtained a $150,000 insurance policy on his life with the New York Life Insurance Company, for which she was an agent. A handwriting expert testified that although John Wilshire had not signed the application, defendant had signed the policy application as a witness. Moreover, the expert testified that whoever had written the signature had sought to simulate that of the deceased. Also, evidence was introduced that defendant had been spending a significant amount of time at the home of the man who was her supervisor at the insurance company. In addition, defendant had called a number of witnesses to ask them not to give any statements to the police unless her attorney was present. Medical evidence indicated that John Wilshire had died two to four hours prior to the on-the-scene physical examination that took place at approximately 9 p.m. on April 23, 1983. Thus the time of death was determined to be between 5 and 7 p.m.

On the basis of this circumstantial evidence, the jury found that the state had proven defendant's guilt beyond a reasonable doubt. The trial justice denied a motion for a new trial after an extensive review of the evidence and testimony in the case, stating, "[T]he jury was justified in finding as they did. The Court is in full agreement with their verdict, and the motion for a new trial is denied."

In support of her appeal, defendant raises five issues. These issues will be considered in the order of their significance to the court's opinion. Further facts will be supplied as necessary to consider the issues as presented.

I DID THE TRIAL JUSTICE ERR IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT?

The defendant moved to dismiss the indictment on the ground that the grand jury testimony of Lieutenant John Reise of the State Police was irregular and improper. The defendant argues that Lieutenant Reise and members of the grand jury engaged in a prolonged and improper colloquy concerning the reconciliation of testimony given by Leonard Brown, the manager of the Midland Mall Cinema, with that of Glenn and Carolyn Bowgren and Marjorie Kettelle concerning the times when defendant had been observed at her residence and at the theater. The defendant argues that this colloquy constituted a violation of Rule 6(d) and (e) of the Superior Court Rules of Criminal Procedure. The thrust of the argument seems to be that Lieutenant Reise in effect interfered with the deliberative process of the grand jury as opposed to testifying before it.

There is no question that this colloquy came about as a result of questions put by members of the grand jury. Lieutenant Reise was attempting to respond to those questions, relying on his knowledge of the investigation and his recollection of the statements of the various witnesses. He repeatedly stated to the grand jury that he did not know what others had testified to before the grand jury. For purposes of our analysis, we shall assume, without deciding, that this colloquy, though not in any way encouraged by counsel for the state, would have been incompetent for admission in a judicial proceeding. There is no question that Lieutenant Reise was there as a witness and that during his presentation the grand jury was not engaged in deliberations even though the colloquy may ultimately have been considered by the grand jury during its deliberations.

This court has always recognized the broad powers of the grand jury to investigate any case that comes before it. We have also recognized that the dismissal of an indictment because of alleged misconduct or irregularity of the grand jury is an extraordinary remedy, indeed, and that such a sanction is reserved for very limited and extreme circumstances. State v. Manocchio, 497 A.2d 1, 12 (R.I.1985); State v. Romano, 456 A.2d 746, 750 (R.I.1983). We have declined to adopt a per-se rule of dismissal of an indictment for every violation of a rule of criminal procedure, such as Rule 6(e), State v. Heredia, 493 A.2d 831, 833-34 (R.I.1985). In our approach to determinations of motions to dismiss indictments for alleged irregularities, we have generally followed the lead taken by the Supreme Court of the United States in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956).

In that case, Justice Black, speaking for the Court in connection with the use of hearsay evidence at a grand jury proceeding, observed:

"If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more." Id. at 363, 76 S.Ct. at 408-09, 100 L.Ed. at 402-03.

Recently the Supreme Court of the United States in United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 ...